Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09144/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On January 10, 2017
On January 13, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR AZIM [M]
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Schwenk, Counsel, instructed by IAS
Respondent Ms Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

2. The appellant is a national of Iran. On or around December 6, 2014 the appellant entered the United Kingdom clandestinely and claimed asylum. The respondent refused his application in a decision dated June 1, 2015.

3. The appellant appealed that decision on June 17, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal A Simpson (hereinafter referred to as "the Judge") on February 16, 2016. In a decision promulgated on May 20, 2016 she dismissed his claims.

4. The appellant appealed the Judge's decision on June 3, 2016and permission to appeal was granted by Judge of the First-tier Tribunal Kelly on June 13, 2016. FTTJ Kelly found that it was arguable the Judge's finding on the comment made about the Supreme Leader was either equivocal or irrational. Permission to appeal was also granted in respect of the grounds of appeal relating to (a) the existence of the arrest warrant and (b) the fact no findings were made about the arrest of the appellant's wife.

5. The matter initially came before me on the above date and I heard submissions from both representatives following which I found there was an error in law for the reasons hereinafter stated.

SUBMISSIONS

6. Mr Schwenk adopted the grounds of appeal and submitted there had been a delay of over three months in the promulgation of this decision and that was relevant to at least one of the grounds of appeal. The Judge made no reference in her decision to the arrest of the appellant's wife in her decision and made no findings on that and the fact there was a delay in promulgation supported the appellant's submission that it was possible the Judge overlooked this with the delay. The second ground of appeal was that the Judge erred in her approach to the appellant's evidence about what was said about the Supreme Leader. It is argued that the words said would be treated as hostile and this would place him at risk of arrest upon return. The other ground of appeal was that the Judge made inconsistent findings on the appellant's actual arrest warrant. She stated it was genuine but then made a finding that she could not be certain what it related to.

7. Mr Harrison adopted a Rule 24 response dated June 29, 2016. However, he acknowledged that the Judge made no findings on the appellant's wife's arrest and made inconclusive findings on the arrest warrant. In the circumstances he agreed there had been an error in law.

DISCUSSION AND FINDINGS

8. In granting permission to appeal Judge of the First-tier Tribunal Kelly identified arguable errors of law and at today's hearing Mr Harrison agreed that two of the matters identified by Mr Schwenk did amount to an error of law and that being the case there would have to be fresh findings.

9. I am satisfied that the Judge erred in her approach to the arrest warrant and the evidence relating to the appellant's wife. What is required is a fresh consideration of all of the evidence and fresh findings.

10. I raised with both representatives where this appeal should be heard in the event there was an error in law. Both agreed that in light of Part 3, Section 7.1 to 7.3 of the Practice Statement the matter should be remitted to the First-tier Tribunal.

11. I direct that any additional evidence should be served on both the Tribunal and other party in accordance with the current Procedural Rules.

DECISION

12. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.

13. The appeal is remitted back to the First-tier Tribunal for these issues to be addressed hearing under Section 12 of the Tribunals, Courts and Enforcement Act 2007.

14. The matter should not be listed before Judge of the First-tier Tribunal A Simpson. Ideally, this matter should be listed before myself in the First-tier but I leave that to the listing department to decide if that is necessary.

15. A Farsi interpreter will be required.

Signed: Dated: 9 June y

Deputy Upper Tribunal Judge Alis